Thurstin v. Luce

Morse, J.

■ The plaintiff, by his counsel, objects to the taxation of two items in the defendant’s bill of costs in this Court:

1. To $184.50, charged for stenographer’s copy of testimony used in the making and settlement of bill of exceptions.

2. To $46.65, claimed and taxed by the clerk at $42.95, for copy of record for printer.

In regard to the first item, it appears that no application was made to the judge of the superior court of the city of Grand Rapids, for an order requiring the official stenographer of that court to make and file a copy of his notes of the testimony, under How. Stat. § 6590, which provides that—

“It shall be the duty of tile said stenographer, upon the order of the court, to write out in legible English a full copy of the notes taken by him on the trial of any cause, without fee or charge, and file the same with the clerk of said court, for the use of the court and the parties to said cause ; and such copy shall be made and filed within such time as the court shall order.”

How. Stat. § 6591, governing the stenographer of this court, also provides that—

“It shall be the duty of said stenographer to furnish, without delay, copies of the notes taken by him, written out in legible English, to any party who may request the same ; and he shall be entitled to demand and receive therefor not to exceed ten cents for each folio of one hundred words.”

The section of the statute first above referred to is very similar to the statute governing the stenographer of the Kent circuit, which was referred to in Maynard v. Vinton, 59 Mich. 155, differing mostly in a transposition of words. How. Stat. § 6515. The case above cited is relied upon for the taxation of this item in this case. But the item in Maynard v. Vinton was allowed by us expressly for the reason that the judge of the circuit court, upon application, refused to make an order requiring the stenographer to file a copy of his notes under the statute, and also refused to settle the bill of exceptions without such copy. The effect of this ruling was to force the appealing party to procure a copy, and to pay for it; and in such case we held he was entitled, if he prevailed in this Court, to tax the same as a part of his necessary costs and expenses.

The case here is different.‘ The defendant was not obliged to procure this copy. He obtained it upon his own motion, without any effort to take the advantage of the statute. His payment for the copy must be considered as voluntary, and comes within the decisions of this Court under the general law in relation to stenographers. Hayes v. Livingston, 35 Mich. 371; Detroit, G. H. & M. Ry. Co. v. Hayt, 55 Id. 351; Bell v. Pate, 48 Id. 640. The item should not have been taxed.

In relation to the second item, it is shown, without dispute, that the original bill of exceptions in the cause was-prepared, under dictation of the attorneys, by Lizzie Hanna, a stenographer, in Grand Rapids, who made three copies of the same, for which she was paid at the rate of five cents for the original, per folio, and one cent per folio for each copy. In the taxation plaintiff was allowed for one-half of 1,718 folios, at five cents, ambunting to $42.95. We think he should have been allowed only one-half of the same number of folios, at one cent, to-wit, $8.59.

The preparing of the original bill of exceptions could not be taxed, and the copy of the same furnished to printer must be taxed at its cost.

The bill of costs will therefore be retaxed by the clerk of the Court in accordance with the views above stated.

The other Justices concurred.